Does a Surviving Spouse Need Probate in Texas?

The death of a spouse brings more than just emotional loss. It often comes with legal and financial uncertainty. One question we hear from grieving spouses is, Does a surviving spouse need probate in Texas? In short, it depends on how assets were titled, whether they left a will, and how they structured the estate. In some cases, you may not need probate. In others, you will need it to transfer property, settle debts, or confirm ownership.

At Lewis Law Firm, PLLC, our mission is to simplify the legal steps following a loved one’s passing and give you the peace of mind you need to move forward. Led by Samantha Lewis, who has nearly a decade of legal experience and focuses on compassionate, strategic estate and legacy planning. Whether you are trying to avoid probate, navigate it efficiently, or understand your options, we are here to help.

When Does a Surviving Spouse Need Probate in Texas?

In some cases, a surviving spouse must go through probate to gain legal authority to transfer or manage assets belonging to the deceased spouse. In other cases, you can avoid probate, especially if you and your spouse planned ahead.

You likely need to go through probate if:

• Your spouse owned property in their name only without survivorship rights or a transfer mechanism like a beneficiary designation;
• You and your spouse did not sign a survivorship agreement for your community property;
• Your spouse did not leave a valid will, or the will has legal problems such as missing signatures or improper witnessing that require the court’s involvement;
• Your spouse left a will; or
• Your spouse tried to disinherit or exclude you from their estate.

In these situations, probate enables you to transfer ownership into your name.

Does a Spouse Automatically Inherit Everything in Texas?

A spouse does not automatically inherit everything. However, Texas follows community property laws, where property that either spouse obtained during the marriage is community property belonging equally to both spouses.

You already own half of your joint property. You usually receive the other spouse’s half when they die, unless they had children from another relationship. If they owned separate property, which is property they acquired before marriage or through gift or inheritance, others may have a legal right to inherit that property, too.

Regardless, that property does not transfer automatically but through the probate process.

Who Else Might Have a Claim to the Deceased Spouse’s Estate?

Even if you are the surviving spouse, you may not be the only person with a legal right to part of your spouse’s estate. Others who may have a claim to some part of the estate include:

• Children from another relationship. If your spouse had children from a previous relationship, those children may inherit a portion of your spouse’s property.
• Shared children. When a spouse owns separate property and does not dispose of it through a will, shared children have a claim to part of that property.
• Parents or siblings. If the spouse who owned separate property had no children, a portion of their separate property passes to the spouse’s surviving parents or siblings, if any.
• Creditors. Before distributing inheritances, the estate must settle debts. Creditors can collect by filing claims against the estate.
• Co-owners or business partners. If your spouse owned property or a business jointly with someone else, the co-owner may have a legal or contractual right to that share. A buy-sell agreement, operating agreement, or right of survivorship can determine what happens to your spouse’s interest.

Probate can be necessary to allow these groups to claim their share of the estate.

Do I Have to Go Through Probate If My Spouse Dies?

Whether you need probate depends on whether your spouse had an estate plan and what that plan included. To find out when probate is necessary in your situation, talk to a probate attorney. We can help you:

• Gather documents like deeds, account records, insurance policies, and retirement plans;
• Make a list of assets;
• Check how each asset is titled, looking for joint ownership or survivorship rights;
• Review any beneficiary designations, such as those in retirement plans and life insurance; and
• If your spouse left a will, locate it.

Unless your spouse created a plan specifically designed to avoid probate, you will most likely need to complete the process.